IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (DB) No.76 of 2011

Arising Out of PS.Case No. 29 Year- 2001 Thana -null District- EASTCHAMPARAN(MOTIHARI)
===========================================================
1. Pappu Singh @ Rajiv Ranjan Singh @ Sanjay Singh S/O Devendra Singh,
Resident Of Village- Arara, P.S.- Adapur, District- East Champaran
.... .... Appellant/s
Versus
1. The State Of Bihar
.... .... Respondent/s
with

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Criminal Appeal (DB) No. 1349 of 2010
Arising Out of PS.Case No. 29 Year- 2001 Thana -null District- EASTCHAMPARAN(MOTIHARI)
===========================================================
Dhrub Singh son of late Anirudh Singh, R/o vill. Arara, P.S. Adapur, District East
Champaran
.... .... Appellant/s
Versus
The State of Bihar
.... .... Respondent/s
with

===========================================================
Criminal Appeal (DB) No. 1352 of 2010
Arising Out of PS.Case No. 29 Year- 2001 Thana -null District- EASTCHAMPARAN(MOTIHARI)
===========================================================
Chunnu Singh @ Subhash Chandra Singh @ Subhash Chander Singh son of
Sachchita Nand Singh @ Mahanth Singh, R/o vill. Arara, P.S. Adapur, District East
Champaran

.... .... Appellant/s

Versus
The State of Bihar
.... .... Respondent/s
with

===========================================================
Criminal Appeal (DB) No. 1361 of 2010
Arising Out of PS.Case No.29 Year- 2001 Thana -null District- EASTCHAMPARAN(MOTIHARI)
===========================================================
1. Brajesh Singh son of Trilok Singh
2. Subhash Singh son of Harendra Singh, both residents of R/o vill. Arara, P.S.
Adapur, District East Champaran
.... .... Appellant/s
Versus
The State of Bihar
.... .... Respondent/s
with

===========================================================
Criminal Appeal (DB) No. 1362 of 2010
Patna High Court CR. APP (DB) No.76 of 2011 dt.09-12-2015

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Arising Out of PS.Case No.29 Year- 2001 Thana -null District- EASTCHAMPARAN(MOTIHARI)
===========================================================
Dharmender Singh @ Tarzan Singh @ Tarzan son of late Droga Singh, R/o vill.
Arara, P.S. Adapur, District East Champaran

.... .... Appellant/s

Versus
The State of Bihar
.... .... Respondent/s
with

===========================================================
Criminal Appeal (DB) No. 1372 of 2010
Arising Out of PS.Case No. 29 Year- 2001 Thana -null District- EASTCHAMPARAN(MOTIHARI)
===========================================================
Dharmendra Singh son of late Madan Mohan Singh, R/o vill. Arara, P.S. Adapur,
District East Champaran

.... .... Appellant/s

Versus
The State of Bihar
.... .... Respondent/s
===========================================================
Appearance :
(In CR. APP (DB) No. 76 of 2011)
For the Appellant/s : Mr. Rajendra Narayan, Sr. Advocate
Mr. V. Kumar, Advocate
For the Respondent/s : Mr. A.K. Sinha, APP
(In CR. APP (DB) No. 1349 of 2010)
For the Appellant/s : Mr. R. Narayan, Sr. Advocate
Mr. V. Kumar, Advocate
For the Respondent/s : Mr. S.N. Prasad, APP
(In CR. APP (DB) No. 1352 of 2010)
For the Appellant/s : Mr. R. Narayan, Sr. Advocate
Mr. V. Kumar, Advocate
For the Respondent/s : Mr. S.C. Mishra, APP
(In CR. APP (DB) No. 1361 of 2010)
For the Appellant/s : Mr. R. Narayan, Sr. Advocate
Mr. V. Kumar, Advocate
For the Respondent/s : Mr. Ajay Mishra, APP
(In CR. APP (DB) No. 1362 of 2010)
For the Appellant/s : Mr. R. Narayan, Sr. Advocate
Mr. V. Kumar, Advocate
For the Respondent/s : Mr. Maya Nand Jha, APP
(In CR. APP (DB) No. 1372 of 2010)
For the Appellant/s : Mr. R. Narayan, Sr. Advocate
Mr. V. Kumar, Advocate
For the Respondent/s : Mr. S.B. Verma, APP
===========================================================
CORAM: HONOURABLE JUSTICE SMT. ANJANA PRAKASH
and
HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA
ORAL JUDGMENT
(Per: HONOURABLE JUSTICE SMT. ANJANA PRAKASH)
Date: 09-12-2015
Patna High Court CR. APP (DB) No.76 of 2011 dt.09-12-2015

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Appellant Pappu Singh of Criminal Appeal (DB) No.76

of 2011 has been convicted and sentenced to rigorous imprisonment

for life under Section 302 I.P.C., 5 years R.I. under Section 307/149

I.P.C., 2 years R.I. under Section 148 I.P.C. and 3 years under Section

27 of the Arms Act and also fine of Rs.3000/-, in default of which

simple imprisonment for one month. Appellant Dhrub Singh of

Criminal Appeal (DB) No.1349 of 2010 and Appellant Dharmender

Singh @ Tarzan Singh @ Tarzan of Criminal Appeal (DB) No.1362

of 2010 and Appellant Dharmendra Singh of Criminal Appeal (DB)

No.1372 of 2010 have been convicted and sentenced to rigorous

imprisonment for life under Section 302/149 I.P.C., 5 years R.I. under

Section 307 I.P.C., 2 years R.I. under Section 148 I.P.C. and 3 years

R.I. under Section 27 of the Arms Act with a fine of Rs.3000/-, in

default of which simple imprisonment for one month. Appellant

Chunnu Singh @ Subhash Chandra Singh @ Subhash Chander Singh

of Criminal Appeal (DB) No.1352 of 2010 and Appellants Brajesh

Singh and Subhash Singh of Criminal Appeal (DB) No.1361 of 2010

have been convicted and sentenced to rigorous imprisonment for life

under Section 302/149 I.P.C., 3 years R.I. under Section 307/149

I.P.C. and one year R.I. under Section 147 I.P.C. by judgment dated

29.11.2010 passed by the 7th Additional Sessions Judge, East

Champaran, Motihari in Sessions Trial No.719 of 2002.

2. The case of the prosecution according to the Informant

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Kundan Kumar (P.W.7), son of the deceased, is that on 19.04.2001 at

about 2.30 p.m. he left home along with the deceased Braj Bhushan

Singh, their Sepoy Chandeshwar Singh, co-villager Bhagirath Thakur

and cousin Nilesh Kumar Sharma for their agricultural farm. When

they were in the middle of Arara village and Laxmipur School at

about 03.30 p.m. suddenly 7-8 persons came, who were identified as

Chunnu Singh, Pappu Singh, out of which Chunnu Singh told Pappu

Singh to fire at the deceased Braj Bhushan Singh and he did so on

taking position from the back, on account of which his father fell

down. Just then Appellant Dhrub Singh fired at him but he was

somehow saved. They all started running but Brajesh Singh ordered

that everyone should be killed else they would go to the police, at

which Appellants Dharmendra singh @ Tarzan and Dharmendra

Singh started firing but their shots did not hit them. They noticed a

patrolling party approaching, at which the accused started fleeing,

saying that the deceased had been killed which needed to be reported

to Madan Singh that the work had been accomplished. They then took

the deceased to Dunkan Hospital, Raxaul but the doctor declared him

dead. The dead body of his father was brought home. The motive for

the occurrence was that the daughter of Major Harendra Singh had

been kidnapped on 29.8.2000 by his co-villager Ramesh Singh. The

past Mukhiya Madan Mohan Singh, Dharmendra Singh son of Madan

Mohan Singh, Chunnu Singh, Dharmendra Singh @ Tarzan, Subhash

Singh, Sanjeet Singh, Manoj Singh, Arvind Singh, Brajesh Singh had
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come to his village and proposed to his father that he was a reputed

person and he should try to use his influence for recovering the girl.

His father had made enquiry but it was found that Ramesh Singh had

fled away with the girl, on account of which the girl was not

recovered. Madan Mohan Singh had felt insulted on account of the

inability of the Appellant and had started instigating others that the

deceased had played with the reputation of their villagers. On

12.9.2000 Adapur P.S. case No.83 of 2000 had been instituted in

regard to the case aforesaid. His brother Sanju Dubey (P.W.5) was

also sought to be implicated in the case but final report was submitted

in his regard. Then in another case, namely, Adapur P.S. case No.89

of 2000, once again his name was given but final report was

submitted. His cousin brother Satyendra Dubey was a candidate for

Mukhiya election and there was every chance of his winning which

had caused apprehension in the mind of Madan Mohan Singh, the

previous Mukhiya, Arera, who had got the deceased killed. This

information was given in the presence of Nilesh Kumar (P.W.2) and

Hridesh Dubey (P.W.3) at 06.45 p.m. at home.

3. The learned Counsel for the Appellants submits that

the manner of occurrence has not been proved by the prosecution on

account of various factors, one of which is that important witnesses,

such as, patrolling party and the Doctor at Dunkan Hospital have not

been examined. P.W.2 and P.W.7 have stated that they did not see

anyone while they were walking behind each other during or after the
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occurrence and hence their depiction of the manner of occurrence is

not proved. Further independent witnesses, even by way of hearsay,

have not been examined and only interested witnesses, who are

somehow related with the deceased, have been produced by the

prosecution. The Investigating Officer has committed various lapses

including not establishing the place of occurrence and the inquest

report and the map prepared by him are contrary to each other. He

also did not find any holes in the clothes which the deceased was

wearing nor blood on him. He did not produce the blood stained earth

nor did he seize the clothes on the person of the deceased and the

witnesses, who are said to have carried the deceased to the patrolling

party, nor did he send the same. In fact, neither the Informant nor

P.W.1 was present at the place of occurrence as is evident from the

evidence of P.W.6. Even though it is a case of direct evidence, since

the prosecution has brought forth motive for the occurrence they were

duty bound to conclusively prove the same. The prosecution case

suffers on this count as well. The Doctor’s evidence also further

disproves the prosecution case inasmuch as the injuries found on the

deceased appear to have been caused while a person would be in a

supine position and the time of occurrence in his opinion being about

36 hours before the examination does not match with the prosecution

case. The further submission is that the deceased’s own agnates had a

grudge with the deceased and there is every possibility of him having

been killed by them. In the alternative, the argument is also that there
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is specific allegation of firing against Appellant Pappu Singh on the

orders of Chunnu Singh but no overt act is alleged with regard to the

rest of the accused persons and hence they deserve to be acquitted.

4. To appreciate the aforesaid arguments one would like

to briefly analyze the evidence brought on record. No doubt very

lengthy cross examinations have been conducted by the defence

lawyer at the trial stage but we find that the cross examination is

completely irrelevant and not germane to the examination-in-chief

which should not have been permitted by the Trial Judge. However,

without adverting to it we would discuss the relevant portion of

evidence.

5. P.W.1 Chandeshwar Singh is an FIR witness, who has

stated that on the date of occurrence while he along with his employer

Braj Bhushan Dubey, the deceased, was going to see their agricultural

farm along with Kundan Dubey (P.W.7), Bhagirath Thakur (not

examined), Nilesh Sharma (P.W.2) and reached near Arera temple and

Laxmipur School, suddenly 6-7 accused persons, namely, the

Appellants came there with arms. They surrounded all of them and

then on the orders of Chunnu Singh, Pappu Singh fired at the

deceased on the back, on account of which he fell down. They

attempted to lift him up but the Appellant Dhrub Singh fired at

Kundan Dubey (P.W.7) which did not hit him. On account of this the

witnesses started running away but Appellant Brajesh Singh said that

all of them should be finished or else they would report to the police.
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At this Dharmendra Singh fired. While they were running they saw

car of the patrolling Magistrate on which the deceased was loaded.

Pappu Singh stated that the work of his uncle Madan Mohan Singh

had been accomplished. The deceased was taken to Dunkan Hospital

where he was declared dead, so they brought him home. He explains

that the reason for the occurrence was that the sister of Appellant

Subhash Singh had been kidnapped by Ramesh Singh of their village

and it was sought by the accused persons to get the girl released at the

intervention of the deceased but the same could not be done. The

accused persons then had a grudge that the deceased had not tried

enough. The son of the deceased, namely, Satyendra Singh (P.W.5)

was to contest the election of Mukhiya and there was every chance of

his winning which had created an apprehension in the mind of ex-

Mukhiya Madan Mohan Singh. In the cross examination he stated that

he was been working with the family of the deceased for last 35 years.

A lot of irrelevant cross examination has been done with regard to the

road leading east west and also with regard to their caste, affiliation.

A suggestion was given to him that the occurrence had been

perpetrated by the extremists but he had said that he had no

knowledge about it nor did he know of naxalite activities in the area.

In cross examination he had asserted that Appellant Pappu Singh had

also come to the house of his employer to get the girl released. There

is some cross examination with regard to the deceased supporting the

past Mukhiya Madan Mohan Singh to which he had said that he had
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no knowledge. In paragraph 4 he stated that five persons were

walking on the path way of the canal in which the deceased Braj

Bhushan Singh was right in front and thereafter the rest were

following him. However he did not see any of the accused persons

coming out of Arera village nor did he scream as soon as he saw

them. He stated that the first shot hit the deceased, at which they

attempted to lift him up but three shots were then fired, at which the

witnesses started to run. On the patrolling jeep the patrolling

Magistrate, the driver and four sepoys were there on which the

deceased had been loaded. While walking they were about 1-2 hands

behind each other and that no one else was injured in the firing. His

attention was drawn to the earlier statement given under Section 161

Cr.P.C. but only to the extent that he had not stated as to exactly

where the occurrence had taken place. In paragraph 20 once again he

stated that before the first shot was fired he did not hear any noise or

sound and they were all panic, stricken and screaming while running

helter skelter. He did not remember the names of the persons who had

come nor as to when he was examined by the police and that he had

not stated that the accused persons had surrounded them. He stated

that some blood was scattered where the deceased had fallen. His

attention was also drawn to his earlier statement that he had not

named Subhash Singh nor that Dhrub Singh was holding a pistol and

the rest were armed with Nalkatuas nor about the motive of the

occurrence. We find that there is no suggestion that in fact no

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kidnapping of the daughter of Captain Harendra Singh had taken

place or the deceased had intervened in the matter or there was any

kind of grudge on account of his non-intervention. The suggestion is

merely general to the extent that such an occurrence had not taken

place and the accused persons had been falsely implicated.

6. P.W.2 Nilesh Kumar is another eye witness, whose

name is in the First Information Report. He stated that he along with

his uncle deceased Braj Bhushan Dubey, P.W.1 Chandeshwar Singh,

Bhagirath Thakur (not examined) and P.W.7 Kundan Dubey, the

Informant, were going when on the way 6-7 persons, namely, the

Appellants came there and then on the orders of Chunnu Singh, Pappu

Singh fired at the deceased on back, on account of which he fell

down. When he attempted to lift him up Dhrub Singh fired at Kundan

Dubey (P.W.) but it did not hit him and Brajesh Singh ordered that

they should all be finished or else they would disclose the names to

the police, at which Dharmendra Singh @ Tarzan, Dharmendra Singh

and Subhash Singh started firing with the fire arms. They then started

running and when they reached the road they found a patrolling car

approaching on which they took the deceased to Dunkan Hospital,

Raxaul, where he was declared dead. They then brought him back. He

proves his signature on the fard beyan, which is Exhibit 1. He also

proves his signature on the inquest report, which is Exhibit 1/1. He

states that the reason for the occurrence is about the girl having been

kidnapped by one of the co-villagers and the inability of the deceased

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to locate her and also that the son of the deceased was likely to win in

the panchayat election, on account of which Madan Mohan Singh,

previous Mukhiya had a grudge. In cross examination somehow he

stated that he was examined on 19.4.2002 but it seems to be that it is a

slip of pen since in the case diary it is noted that he was examined on

the same day. Once again a lengthy cross examination has been

conducted but without any relevance. The defence had strived to

impeach his credibility on the ground of his previous antecedents. His

attention was drawn to the earlier statement that he had not stated that

the accused persons had declared that it should be reported to Madan

Mohan Singh that his work had been accomplished. He stated that

there was a Police Station at Bhalubadiya itself. He describes the

exact location that the occurrence had taken place to the last detail in

the cross examination and also that all of them were walking one after

the other and the deceased was right in the front. Before the firing he

had not seen anyone so they could not caution or save themselves.

The accused had come suddenly and fired and thereafter run away. It

was suggested to him that in fact the family members of the deceased

had some land dispute with the deceased, on account of which he was

murdered and this case has been falsely built up.

7. P.W.3 Hridesh Dubey is a formal witness, a signatory

to the fard beyan and he proves his signature as Exhibit ½ and on the

inquest report as Exhibit 1/3. He stated that he learnt that Appellant

Pappu Singh had fired at Kundan Jee which fact was told to him by
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P.W.7 and that Dhrub Singh and Chunnu Singh also had fired. He

once again repeats the factum of the motive. In cross examination he

concedes that he is an agnate of the deceased. He has also been

subjected to a lengthy cross examination with regard to the election

and credentials of the family members of the deceased. He stated that

between Dunkan Hospital was a Sub Division in which a Dy.S.P. was

present and his residence is on the road at Raxaul.

8. P.W.4 is Dr. Sachida Nand Choudhary, who

conducted the postmortem examination report and found the

following injuries :

(i) Lacerated wound ¾”x½”x cavity deep with

inverted and blackened margin oval in shape over

back of chest on right side ½” lateral to 6th thoracic

vertebra with tatoooing around the wound in 3”

diameter and there is fracture of 6th & 7th ribs

wound of entry communicating to wound no.II.

(ii) Lacerated wound 1¼”x½” x cavity deep with

everted margin over front of chest on left side below

middle of collar bone with fracture of 2nd and 3rd

ribs wound was communicating with wound No.1 –

wound of exit.

(iii) Abrasion 2”x ½” size over forehead on right

side.

(iv) Abrasion 1”x ¼” size over dorsum of nose.

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(v) Abrasion 1”X ¼” size over face on right side 1”

away from right eye.

(vi) Abrasion ½”x ¼” size over right eye brow over

lateral aspect.

His opinion was that the death had been caused within 36

hours and in cross examination he stated that when he opined about

time of death he meant that it may be from 24 hours to 36 hours also.

From this witness the defence elicited that two sons of the deceased

were also with him when he was brought to the Hospital. In cross

examination he has also explained that when a fire arm is shot from

the back while sitting and keeping the barrel towards the back on

upper side, the bullet may create oval injury and he had found oval

injury on the person of the dead body. In cross examination he also

stated that the shot had been fired from the distance of 3-4 feet which

was suggested by blackening and tattooing found on the dead body.

9. P.W.5 Sanju Dubey is the other son of the deceased,

who stated that on the date of occurrence at about 2.30 p.m. while he

was at home he saw his father calling out to the rest to see the

agricultural farm at which his younger brother Informant Kundan

Kumar, Chandeshwar Singh (P.W.1), Nilesh Kumar (P.W.2) and co-

villager Bhagirath Thakur (not examined) left with him. While they

had reached near a by lane at about 2-3 p.m. he heard sound of firing.

So he went there where he found out that his father had been shot at

and was being taken by the car of the patrolling Magistrate. He also
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boarded the car along with the rest of the witnesses and took him to

Dunkan Hospital, where he was declared dead. His younger brother

(P.W.7) told him that his father had been shot at by Pappu Singh on

the back and the other accused persons had also fired. He also repeats

that the sister of Appellant Subhash Singh had been kidnapped by

Ramesh Singh of their village and the inability of the deceased to

search her out had irked the family of Madan Singh. He stated that the

dead body was brought back home where the Daroga came and

recorded the statement of Kundan Singh (P.W.7). In cross

examination he has been asked about the details of the girl in question

but it is of no avail to either party. He explained that in the patrolling

car driver and 4-5 other persons were there but he did not remember

their names. He also did not find any khokha (wad) etc at the place of

occurrence where he had visited with the Investigating Officer. In

cross examination he stated that in this period of taking the deceased

to the Hospital or bringing him home he did not inform the police

even though the telephone facility and mobile was available. He

explains that on account of injured condition of his father they were

all in shock. In cross examination he once again explained that he had

received information from his brother (P.W.7) about the occurrence.

10. P.W.6 Chandrajeet Rai stated that on the date of

occurrence while he was coming back after having voted he heard

hulla in the village that the deceased had been shot at. So he went to

his house and along with Sanju Dubey (P.W.5) he went to Laxmipur
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School where he saw the deceased in an injured condition. P.W.7 told

P.W.5 that on the orders of Chhunu Singh, Pappu Singh had fired and

disclosed the names of rest of the accused persons. In cross

examination he stated that he had been examined on the next day of

occurrence when the police had come to the house of the deceased.

His attention was drawn to the earlier statement that he had not stated

that he had overheard P.W.7 disclosing about the occurrence to P.W.5

and the complicity of the present Appellants nor about the motive

with regard to the grudge of Madan Singh on account of impending

Mukhiya election.

11. P.W.7 Kundan Kumar is the Informant, who repeated

the contents of the fard beyan and proved his signature on the same as

Exhibit 1/4 and 1/5. He has also been cross examined at great length

but most of the questions are so irrelevant that it is a wonder how the

Trial Judge had allowed such cross examination. He explained that the

patrolling Magistrate car came near the School and the constables had

run towards them on sound of firing. His attention was drawn to the

earlier statement with regard to the election dispute and about his own

political ambition. In paragraph 18 he explained that all the persons

were walking behind each other and the deceased was right in front

when shot was fired from the back, on account of which the deceased

fell down. Immediately thereafter the second shot was fired towards

himself at which he ran leaving his father. He stated that no one else

had gone from the village to Dunkan Hospital nor could he disclose
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the names of patrolling Magistrate. He once again explained that he

saw the deceased falling and thereafter second firing and then he

realized that it had been fired at him. The person who was firing was

at about 2-3 hands and there was no one else between. Only his father

had been injured and the rest did not even sustain a scratch. For some

reason his attention was drawn to the fact that he had stated to the

persons present in Laxmipur booth that one person was running away

after firing on the deceased and he be helped in catching them. In fact,

the constables of the patrolling Magistrate who were at Laxmipur

booth, had attempted to catch the accused but could not do so. He

stated that those persons were known and that the Investigating

Officer had come to his house.

12. P.W.8 Upendra Dubey stated that Mukhiya election

was impending in which the deceased Braj Bhushan Dubey was

actively compaigning for his nephew Satendra, on account of which

the present occurrence had been got committed. Since no name has

been disclosed by him, his evidence appears to be irrelevant.

13. P.W.9 Triyogi Narayan Jha is the Investigating

Officer, who proves the fard beyan (Exhibit 2), the First Information

Report (Exhibit 3), the inquest report (Exhibit 4). He stated that the

place of occurrence was a lane which led from village Madanpur

distributory canal leading towards Arara on the east. On the south side

a path way was made which was used for people passing. On the

south of the distributory canal is the field of Braj Bhushan Dubey and
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adjacent to it is the place of occurrence in between Arara and

Laxmipur Bhawanpur. Adjacent is the place where the deceased had

been shot by the accused, on the north was the field of Braj Bhushan

and on the south was that of Tripit and on the east was Braj Bhushan

and Ram Ayodhya which were all ploughed. The place of occurrence

was in between Arera and Laxmipur. He made a sketch of place of

occurrence. He further stated that he had found blood stained earth at

the place of occurrence, of which he made seizure list on which P.W.2

and P.W.3 signed. He proves the same as Exhibit 5. After having

examined the witnesses he submitted charge sheet. In the case diary at

paragraph 41 he had noted that on 24.4.2001 a panchayati had been

held in presence of Madan Singh in which the issue of tension on

account of kidnapping of daughter of Harendra Singh had arisen. On

the one side was Madan, Brajesh Singh and on the other Bhushan and

Bhagirath etc. In cross examination he stated that there was a lot of

nexalite movement in the area. He conceded that he had not sent the

blood stained earth for chemical examination and had prepared the

inquest report before the fard beyan as also not seized the clothes of

blood clothes of witnesses nor the clothes of the deceased. He did not

take note of the area in which the blood was scattered at the place of

occurrence. His attention has been drawn to the previous statements of

the witnesses but all the statements are so long winding that it is

difficult to locate as to what was the exact deviation between the

previous statement and the one recorded in the Court. In which

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circumstances, we are not inclined to place any reliance on such

contradictions.

14. The defence also examined two witnesses on their

behalf. D.W.1 Chandramauli Kumar has proved a First Information

Report and the charge sheet. D.W.2 Puran Giri has stated about the

educational qualification of Pappu Singh and nexalite movement in

the area but he was not earlier examined.

15. On looking into the records of the case, we find that

soon after the occurrence a protest petition had been filed against the

Investigating Officer that he was making a collusive investigation

which explains as to why he did not record the statements of

independent witnesses nor send the blood stained earth for chemical

examination, nor seize the blood stained clothes on the person of the

deceased or the witnesses. In such circumstances, the argument that

the prosecution has not been able to prove the manner of occurrence

or the presence of the witnesses for the aforesaid reason has to be

rejected. As for the manner of occurrence, we find that the consistent

evidence is that all the witnesses were walking behind each other and

suddenly the accused persons sprang upon them and shot at the

deceased from the back, on account of which he fell down on his face.

From their evidence the fact that they did not hear any accused before

the firing or even during the firing is well explained since from the

manner narrated it appears that the occurrence had not taken place

within minutes. In such circumstances, when Pappu Singh was not

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being seen before firing at the deceased from the back and the rest

firing at the witnesses to scatter them off or even to kill them is well

plausible. Also the fact that scratches were found on the face of the

deceased further corroborates the prosecution case that after the firing

from the back the deceased had fallen on his face. As for the injuries

being oval or circular has no meaning in the present case since it is

most natural that a person’s hand would shake and not be completely

stable while firing is made within a split of second especially when

the target is moving. The doctor no doubt stated in his cross

examination that when he said that the occurrence had taken place

within 36 hours he had meant that it could be within 24 to 36 hours, is

not acceptable by the Court. Once he has stated in his examination-in-

chief that it was within 36 hours it certainly means that it was within

36 hours and such minute timing of death so precisely could not be

given by him especially when he has mentioned that rigor mortis was

present.

16. As for alternative argument of considering the case

of non-assailants, even while we are inclined to disbelieve the

prosecution case in so far as the Appellant Chunnu Singh having

ordered Appellant Pappu Singh to fire is concerned, but fact remains

that all the accused variously armed had come together and fired

which makes out a case of accused having common intention/object to

commit murder of the deceased. In such circumstances, we find no

merit in such submission.

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17. For the aforesaid reasons, we find no merit in these

appeals. The same is dismissed.

(Anjana Prakash, J)

(Rajendra Kumar Mishra, J)

Narendra/NAFR

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